JAMES NOLLET, JAMES CARROLL, DAVID MERCHANT,DONALD ROINE, RICHARD SCANLON, EARL SHOLLEY and THE FATHERHOOD COALITION/CPF

Plaintiffs

CIVIL
ACTION

V.
NO.
99-11861-EFH

JUSTICES OF THE TRIAL COURT OF THE COMMONWEALTH OF MASSACHUSETTS

Defendant

ORDER OF DISMISSAL

HARRINGTON, D. J.

In accordance with the Court's Memorandum and Order dated

01-27-00 granting defendant's motion to dismiss, it is hereby

ORDERED that the above-entitled action be and hereby is dismissed.

By the Court,

JANUARY 27, 2000 <sig>

Date
Deputy Clerk

(Diamrmmo.ord - 09/92)

<Seal: U.S. District Court, Dist. of Massachusetts>

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

JAMES NOLLET, JAMES CARROLL,
DAVID MERCHANT, DONALD ROINE,
RICHARD SCANLON, EARL SHOLLEY,
and THE FATHERHOOD COALITION/CPF,

Plaintiffs

V.

)
)
)
)
)
)
)
) CIVIL ACTION NO.:

JUSTICES OF THE TRIAL COURT OF THE COMMONWEALTH OF MASSACHUSETTS,

Defendants.

) 99-11861-EFH
)
)
)
)

MEMORANDUM AND ORDER

January 27, 2000

HARRINGTON, D.T.

STATEMENT OF THE CASE

This matter is before the Court on Defendants' Motion to Dismiss the Plaintiffs'
Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of
Procedure. The defendants assert four bases for dismissal: (1) that this Court does not
have Jurisdiction under the Rooker-Feldman doctrine; (2) that this Court should abstain
from exercising its jurisdiction under the Younger abstention doctrine; (3) that
the defendants are immune from suit; and (4) that the plaintiffs have failed to state a
cause of action under 42 U.S.C. § 1983. For the reasons stated below 3 the
Dcfendants'Motion to Dismiss is granted.

The individual plaintiffs in this case', James Nollet, James Carroll, David Merchant,
Donald Rome, Richard Scanlon and Earl Shollcy, are all men who have been litigants in
domestic relations and/or abuse prevention matters in the trial courts of Massachusetts.
The Fatherhood Coalition/CPF, which is also claimed as a plaintiff, is an unincorporated
advocacy organization comprised of males who have been involved in custody and visitation
issues in Massachusetts courts. The defendants comprise the 345 state court judges who
currently make up the Superior Court, District Court and Family and Probate Courts of the
Commonwealth of Massachusetts.

The plaintiffs bring this action pursuant to 42 U.S.C. §
1983 seeking both declaratory and injunctive rehef Specifically in Count 1, plaintiffs
seek dcclaratory and injunctive relief declaring Mass.Gen.L. ch. 209A, § 4 unconstitutional because it permits the granting of temporary
restraining orders at exparte hearings and enjoining the Judicial defendants
from further enforcement of said statute. In Count II, plaintiffs seek declaratory and
injunctive relief commanding the Judicial defendants to adopt measures to prevent
discrimination agamst men in the Probate and Family Court. In Count III, plaintiffs seek
declaratory and injunctive relief declaring Mass.Gen.L. ch. 209A, § 3B unconstitutional as constituting an impermissible restriction
on the plaintiffs' Second AmencLment right to bear arms and enjoining the judicial
defendants from further enforcement of said statute. When

Footnote

1. Without ruling on the matter, this Court assumes, for the purpose of this
motion orily, that the Fatherhood Coatition/CPF has standing to bring suit in this matter.

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a sole federal district court judge is required to consider declaring an act of a state
legislature, the representative of all the people of that state, as null and void, that
judge must approach this awesome task with grave deliberation and prudent caution. In a
representative democracy a judge does not lightly declare an act of the people's
reprcscntatives unconstitutional.

Statutory Scheme: Mass.Gen.L. ch. 209A

The law being challenged in this case, Massachusetts General Laws Chapter 209A (the
Massachusetts Abuse Prevention Law), was enacted in 1978 in response to a growing public
awareness of domestic violence and the legal system's ineffectiveness in dealing with such
violence. Chapter 209A provides that a person suffering abusc from a family or household
member may file a complaint in the Superior, Probate and Family, or District/Municipal
court requesting protection against such abuse. See Mass.Gen.L. ch. 209A, §3.

If the 209A petitioner proves the existence of such abuse by a preponderance of the
evidence, see Frizado v. Frizado, 420 Mass. 592, 596-97, 651 N.E.2d 1206,1210
(Mass.1995), the court may then issue an order imposing significant restrictions on the
defendant.

See Mass.Gen.L. ch. 209A, § 3. Although the Court is free
to fashion whatever remedy it deems appropriate, the statute enumerates a number of
specific orders which the Court may

issue, including: ordering the alleged abuser to vacate the household abode, sec id.
Section 3(c), and ordering the alleged abuser to refrain from contacting any children in
the

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petitioner's care regardless of the alleged abusers relationship to such
children. See id. Section 3(h).

A court can issue a temporary order granting the remedics provided in ch. 209A, §3,
without giving the alleged abuser notice and an opportunity to be heard, provided that the
petitioner files a complaint and demonstrates "a substantial likelihood of immediate
danger of abuse." See Mass.Gen.L. ch. 209A, §. 4. If
the court does issue an exparte temporary order under Section 4, the court
must then give the defendant the opportunity to be heard on the question of continuing the
temporary order within ten (10) business days after the issuance of the exparte ordcr.
See id. In addition, if the petitioner in a Chapter 209A proceeding demonstrates a
substantial likelihood of immediate danger of abuse, then the court is mandated to order
the defendant to relinquish immediately for confiscation by the police any firearms and
ammunition in the defendant's control, ownership or possession, and to surrender any
license to carry firearms. See Mass.Gen.L. ch. 209A, §. 3B.

With regard to the plaintiffs inthis case, it has been asserted both at
oral argument and through subsequent correspondence to the Court that Messrs. Nollet,
Carroll, Merchant, and Sholley have all been subect to both temporary restraining orders
issued ex parte, as well as permanent restraining orders issuing after a full
hearing. While the permanent restraining orders against Messrs. Nollet and Sholley have
expired, Messrs. Carroll and Merchant are still subject to permanent restraining orders.
In addition, counsel for the plaintiffs have asserted that Plaintiff Merchant was required
to relinquish a firearm

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pursuant to ch. 209A, § 3B. Plaintiffs Roine and Scanlon
have never been subject to a restraining order issued under Chapter 209A, but they allege
that in the course of their divorce and support proceedings they were denied the equal
protection of the law because of theirsex.

DISMISSAL STANDARD

At this point in the litigation, "[a] court may dismiss a complaint only if it is
clear that no relief could be granted under any set of facts that could be proved
consistent with the allegations." Hishon v. King & Sibalding, 467 U.S. 69,
73, 104 S.C.t 2229, 81 L.Ed.2d 59 (1984). In considering a motion to dismiss, whether on
the ground of lack of subect matter Jurisdiction or for failure to state a claim, the
complaint is construed in the light most favorable to the pleader and all allegations
therein are taken as true. See Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683) 40
L.Ed.2d 90 (1974)- see also Wright & Miller, Federal Practice and Procedure: Civil 2d
§§ 1350, 1357. However, with regard to a 12(b)(1) motion,
the party asserting subject matter Jurisdiction has the burden of proving that the court
has Jurisdiction over the claims. See Viqueira v. First Bank, 140 F.3d 12,
16 (Ist Cir. 1998).

When ruling on a 12 (b) (6) motion to dismiss for failure to state a claim, the court
may consider only the facts alleged in the pleadings, documents attached as exhibits or
incorporated by reference in the complaint, and matters of which judicial notice may be
taken. See Samuels v. Air Transip. Local 504, 992 F.2d 12, 15 (2d Cir.1993). In
deciding such a motion, the Court must merely determine whether the allegations of the
complaint constitute a statement of claim under the liberal pleading requirements of Rule
8(a) of the

Before deciding any other issue, this Court must first determine whether it has subect
matter Jurisdiction over the plaintiffs' claims. See Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 89-102, 118 S.Ct. 1003, 1010-16, 140 L.Ed.2d 210 (1998)
(even if the merit question is "easy" and the Jurisdictional question is not, a
federal court must first find that it has jurisdiction to hear the claim). In their brief
in support of their motion to dismiss, the defendants raise three specific challenges to
this Court's jurisdiction over this case: (1) the Rooker-Feldman doctrine; (2) the Younger
abstention doctrine; and (3) Judicial immunity. However, this Court has jurisdiction over
the claims set forth in Count I and Count III pursuant to 28 U.S.C. §§ 1331 and 1343
(the Jurisdictional bases for 42 U.S.C. § 1983), although it
does not have jurisdiction over the claim in Count II, as Count II essentially seeks
injunctive relief against Judicial officers which is barred by the very language of 42
U.S.C. § 1983.

Rooker-Feldman Doctrine

The essential import of the Rooker-Feldman doctrine is that no federal court,
other than the United States Supreme Court, has bccn given Jurisdiction to directly
review state-

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court decisions under the provisions of 28 U.S.C. § 12572.
See ASARCO Inc. v. Kadish, 490 U.S. 605, 622, 109 S.Ct. 2037, 2048, 104 L.Ed.2d 696
(1989). However, the plaintiffs are not attempting to challenge or appeal any particular
state court decision, rather they are challenging the constitutionality of a broad
statutory scheme which they claim deprives individuals of significant property and liberty
interests without due process of law. The Rooker-Feldman doctrine does not bar this
type of suit where a party is challenging the constitutionality of a state statute on its
face. See Schneider v. Colegio de Abogados de Puerto Rico, 917 F.2d 620) 628 (lst
Cir. 1990), cert. denied, 520 U.S. 1029, 112 S.Ct. 865,116L.Ed.2d772(1992). See
also Wright &Miller, §4469.1. Since
the plaintiffs' case is not a direct attack on any particular state court judgment, the Rooker-Feldman
doctrine is not applicable to this case.

Younger Abstention Doctrine

Similarly, the principles of comity and federalism embodied in the Younger doctrine do
not dictate that this Court should abstain from exercising jurisdiction over this case.
The Younger doctrine advises federal courts to abstain from interfering with
"ongoing, originally state-initiated civil or even administrative proceedings that
satisfy three conditions: (1) the proceedings are Judicial (as opposed to legislative) in
nature; (2) they implicate important state interests; and (3) they provide an adequate
opportunity to raise

Footnote

2 This doctrine is subject to some exceptions, most notably in federal habeas corpus petition proceedings.

The Younger abstention doctrine would be applicable, if at all, only to
Plaintiffs Carroll and Merchant, who are the only plaintiffs still subect to
"ongoing" judicial proceedings in the form of restraining orders which are
subject to modification by the Massachusetts courts. However, even as to Plaintiffs
Carroll and Merchant, Younger abstention is not dictated because the state court
proceeding under ch. 209A, § 4 does not afford litigants an adequate opportunity to
assert their federal constitutional claims. See Ohio Civil Rights Commission v.
Dayton Christian Schools Inc., 477 U.S. 619, 626-29, 106 S.Ct. 2718) 2722-24) 91
L.Ed.2d 512 (1986); Moore v. Sims, 442 U.S. 415, 430, 99 S.Ct. 2371, 2380, 60
L.Ed.2d 994 (1979) ("the only pertinent inquiry iswhether the state
proceedings afford an adequate opportunity to raise the constitutional claims").
Under ch. 209A, 54, an alleged abuser who is subject to a temporary restraining order
issued exparte is merely afforded the "opportunity to be heard on the question
of continuing the temporary order. . . ." Mass.Gen.L. ch. 209A, § 4. Once a
temporary restraining order, which has been issued under ch. 209A, § 4, is no longer in
effect (whether because it is

Footnote

3.There is no
doubting that the second condition of NEddlesex County is satisfied 'Ln this case.
The issuance and maintenance of restraining orders implicate the important state interest
of quickly and effectively protecting individuals from domestic abuse. See Moore v.
Sims,442 U.S. 415, 434-35, 99 S.Ct. 2371, 2383, 60 L.Ed.2d 994 (1979) (there is a
compeffing state interest in quickly and effectively removing victims of child abuse from
their parents).

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merged into a permanent order or because a permanent order is
denied), any constitutional challange to theexparte
process would be considered moot in Massachusetts courts. See Zullo v. Goguen,
423 Mass. 679, 680, 672 N.E.2d 502, 503 (Mass. 1996) (dismissing petition as moot bccause
the plaintiff was no longer subject to a restraining order). Since the state court
proceedings do not afford a state court litigant an adequate opportunity to assert the
federal challenge to the constitutionality of the exparte process, the plaintiffs'
claims are not subject to the Younger abstention doctrine4.

Judicial Immunity

It is well settled that a Judicial defendant is immune from a
suit seeking monetary damages for actions which the defendant took within his/her Judicial
capacity. However, the plaintiffs in this case are seeking only declaratory and injunctive
relief, which, in the past, have been permitted under 42 U. S. C. § 1983 against judges
acting in their official capacity. See Pulliam v. Allen, 466 U.S. 522, 541-42, 104
S.Ct. 1970, 1981, 80 L.Ed.2d

Footnote

4. Although not raised by the defendants, the Court's Younger
analysis raises a question as to whether the claims of the plaintiffs who are not still
subject to a restraining order are moot. The claims of the plaintiffs who are no longer
subject to restraining orders are not moot because they fall into a well fouunded
exception to the mootness doctrine -- wrongs which are capable of repetition yet which
evade review. See .e.g. Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 514-515,
31 S.Ct. 279, 55 L.Ed. 3 10 (1911)(seminal Supreme Court case articulating this exception
to the mootness doctrine). Inorder for this exception to apply two criteria must
be met. First, the injury must be of the sort likely to happen to the same plaintiff
again. See Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d
350 (1975). Second, it must be a type of injury of inherently limited duration so that it
is likely to always become moot before federal court litigation is completed. See
id.. - Carroll v. President & Commrs. of Princess Anne, 393 U.S. 175, 178-80,
89 S.Ct. 347, 350-51, 21 L.Ed.2d 325 (1968) (holding that a ten-day restraining order
against demonstrations was capable of repetition and always likely to evade review because
litigation would be completed before the ten days expired). Based upon the filings and the
assertions of counsel at oral arguments, both these criteria are satisfied. In this case
the challenged action of Count I and Count II, the ex parte order, can only last
for up to ten business days and is therefore too short a period of time to be litigated
fully prior to its expiration; and there is a reasonable expectation that these same
plaintiffs would be subjected to another exparte order.

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565 (1984). However, in 1996 Congress passed the Federal Courts Improvement Act
("FCIA") which legislatively reversed Pulliam in several important respects.
Most significantly, FCIA amended 42 U.S.C. § 1983 to state that in any action brought
against a Judicial officer for an act or omission taken insuch officer's Judicial
capacity, injunctive relief shall not be granted unless a declaratory decree was violated
or declaratory relief was unavailable." 42 U.S.C. § 1983 (amended Oct. 19, 1996 by
Pub.L. 104-317, Title III, § 309(c), 110 Stat. 3853). Plaintiffs neither allege that the
defendants have violated a declaratory decree nor that declaratory rehef is unavailable.
On the contrary, the very nature of their claims, which seek both declaratory and
injunctive relief, indicates that declaratory relief is available. See Tones v. Newman,
No. 98-CV-7460, 1999 @ 493429, at *7 (S.D.N.Y. June 30, 1999); Finn v. County of
Albany, No. 98-CV-844, 1999 WL 291820, at *5 (N.D.N.Y. May 5, 1999). Thus, thosc
claims of the plaintiffs which seek injunctive relief are dismissed.

As such, Count II must be dismissed because, even though it prays for both declaratory
and injunctive relief, the relief which it seeks is solely injunctive in nature. Count II
does not seek declaratory rehef in the form of a judgmcnt ruling on the constitutionality
of the current rules of procedure and evidence followed by the Family and Probate Court.
Rather, Count II seeks solely injunctive relief in the form of a decree
"command[ing]" the Family and Probate Court "to adopt measures to prevent
discrimination against men." Not only is it beyond the powers of a federal court to

Therefore, Count II must be dismissed because state court judges are immune from the
injunctive relief sought. See 42 U.S.C. § 1983. However, this Court has jurisdiction over
the plaintiffs' remaining claims for declaratory relief set forth in Counts I and III
pursuant to 28 U.S.C. §§ 1331 and 13435.

FAILURE TO STATE A CLAIM

To assert a viable claim under 42 U.S.C. § 1983, a plaintiff must show: (1) that the
conduct complained of was committed by a person acting under color of state law; and (2)
that the conduct deprived the plaintiff of clearly established rights, privileges or
immunities guaranteed by the federal Constitution or laws of the United States. See
Meehan v. Town of Plymouth, 167 F.3d 85, 88 (1st Cir. 1999); Rodriquez-Cirlio v.
Garcia, 115 F.3d 50) 52 (1st Cir. 1997). With regard to the remaining claims in the
complaint (Counts I and III), the plaintiffs in this case have not properly alleged either

Footnote

5. In response to this Court's suggestion at oral argument, the
defendants have subsequently asserted at oral argument and in a letter to the Court that
this Court lacks jurisdiction over this matter because there is no "case or
controversy" based on the First Circuits opinion in In re The Justices of
the Supreme Court of. Puerto Rico, 695 F.2d 17 (lst Cir. 1982). The defendants
argue that as neutral adjudicators, sworn to uphold the constitution, they have no
interest in defending theconstitutionality of Chapter 209A. While this argument
carries some weight, this Court follows the lead of the First Circuit and avoids deciding
this unclear constitutional question and dismisses the complaint on the altemative grounds
discussed below. See id. (discussing but declining to decide this very
constitutional issue).

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constituent element of a Section 1983 claim. The plaintiffs have failed to establish
the first element because the Judicial defendants are being required to defend actions
taken in their adjudicatory capacity and are thus not proper parties to this suit under
Section 1983. The plaintiffs have also failed to establish the second element because
Chapter 209A does not violate either the Fourteenth or Second Amendments as alleged in the
plaintiffs' complaint. As such, the defendants' 12 (b)(6) motion to dismiss is granted
because the plaintiffs' complaint fails to state a claim under 42 U.S.C. § 1983.

State Action

The action of the Judicial defendants in adjudicating the merits of complaints brought
under the challenged state law does not constitute state action. When considering an
exparte Chapter 209A petition for a temporary restraining order, the Judicial
defendants act solely in their role as neutral adjudicators. An action taken by a state
judge solely inhis/her adjudicatory role does not constitute state action. As the
First Circuit has said, "In short, § 1983 does not provide relief against judges
acting purely in their adjudicative capacity, any more than say, a typical state's libel
law imposes liability on a postal carrier or telephone company for simply conveying a
libelous message." In re The Justices of the Supreme Court of Puerto Rico, 695
F.2d 17, 22 (lst Cir. 1982); see also Mendez v. Heller, 530 F.2d 4573
459-460 (2d Cir. 1976). The Judicial defendants are immune from suit because they are
acting purely in their adjudicatory role when considering the merits of a 209A petition.

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While Chapter 209A gives the judges of the Massachusetts trial courts wide latitude in
fashioning the conditions of both temporary and permanent restraining orders, the judicial
defendants are not acting in either an enforcement, administrative or legislative capacity
when they consider the merits of a 209A petition. See In re The Justices, 695 F.2d
at 22-25 (discussing a judge's adjudicatory role, as compared to other roles-that a judge
might have that would not be barred from such a suit). The Judicial defendants are acting
merely as adjudicators under Chapter 209A because the statute neither confers upon them
the power to initiate actions, nor does it delegate to them any administrative functions.
See id.; see also Brandon E. v. Reynolds, 98-CV-4236, 1999 WL 98585, at *6 (E.D.Pa.
Feb. 25) 1999). Only a person who is suffering from abuse is authorized to bring an action
for a restraining order. See Mass.Gen.L. ch. 209A, § 3. The judicial defendants are
merely authorized to decide the merits of each complaint and to formulate the appropriate
remedy in each individual case. As such, the Judicial defendants are not the proper party
defendants inthis action to declare Mass.Gen.L. ch. 209A unconstitutional, as
their actions in adjudicating complaints brought under Mass.Gen.L. ch. 209A does not
constitute state action for the purposes of 42 U.S.C. § 1983. See In re The Justices,
695 F.2d at 22-236.

Footnote

6 While it could be argued that the 1996 amendment to Section 1983 (FCIA § 309(c)) is
somewhat ambiguous and could be interpreted as unintentionally abrogating the First
Circuit's holding in In re The Justices, no court has considered this issue and it seems
patently clear that Section 309(c) was intended to limit the ability to bring suits
against judges under Section 1983. See, e.g.,Kampfer v. Scullin, 989 F.Supp. 194,
201 (N.D.N.Y. 1997).

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Civil Rights Deprivation

Even if the Judicial defendants' role in the statutory scheme of Chapter 209A were to
render them state actors for the purposes of Section 1983, the plaintiffs' claims would
nonetheless fall because Chapter 209A does not impermissibly deprive individuals of
clearly established rights, privileges or immunities guaranteed by the federal
Constitution or laws of the United States. See Rodriguez-Cirilo v. Garcia, 115 F.3d
at 52. As to Count I, the ex parte procedure of ch. 209A, § 4 is constitutional
because it provides the due process protections that are necessary before the state may
deprive an individual of the constitutionally protected liberty and property interests
that are at stake when a temporary restraining order is issued in a domestic abuse action.
As to Count III, an alleged violation of the Second Amendment cannot be the basis for a
Section 1983 cause of action against a state official because the Second Amendment to the
United States Constitution has not been incorporated by the Fourteenth Amendment and made
applicable to the states.

Fourteenth Amendment Due Process Claim

Despite the fact that every state in the union has a domestic abuse statute similar to
Chapter 209A, there is very little case law on the constitutionality of an ex parte temporary
restraining order procedure like Chapter 209A. What case law there is, however, has upheld
the constitutionality of such laws. See, e.g., Blazel v. Bradley , 698 F.
Supp. 756 (W.D.Wis. 1988); Baker v. Baker, 494 N.W.2d 282 (Minn. 1992); Schramek
v. Bohren, 429 N.W.2d 501 (Wis.App. 1988); Marquette v. Marquette, 686 P.2d 990
(Okla.App.

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1984); State v. Marsh, 626 S.W.2d 223,Mo. 1982) (en banc)- Pendelton
v. Minichino, No. 506673) 1992 WL 75920 (Conn.Super. April 3,1992). Even more
significantly, the Massachusetts Supreme Judicial Court has held that Chapter 209A, in
general, affords an alleged abuser all the necessary due process protections required
under Article 12 of the Massachusetts Dcclaration of Rights. See Frizado v. Frizado
do, 420 Mass. 592) 596-97, 651 N.E.2d 1206, 1210 (Mass. 1995)7. While these
cases are not controlling, they are persuasive in their analysis and reasoning --
particularly the Weston District of Wisconsin's opinion in Blazel.

How much due process that is necessary for a particular situation is not etched in
stone. The due process clause is "flexible and calls for such procedural protections
as the particular situation demands." Mathews v. Eldridge, 424 U.S. 319, 334)
96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471,
481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)). In determining what procedural
protections a

Footnote

7 Although Frizado does not specifically state that the ex parte proceeding
authorized by Section 4 provides the procedural safeguards guaranteed by Artide 12, this
is the reasonable interpretation; footnote 4 of Frizado references the burden of
demonstrating "a substantial likelihood of immediate danger of abuse" before a
judge may enter an exparte temporary restraining order under ch. 209A, § 4. See
Frizado, 420 Mass. at 593 n. 4, 651 N.E.2d at 1208 n. 4. As such, the Supreme Judicial
Court's holding in Frizado is of great significance to this case because the due
process protections of the Massachusetts constitution are comparable to, if not greater
than, those of the federal constitution. See Commonwealth v. Brown, 426 Mass. 475,
482, 688 N.E.2d 1356 (Mass. 1998) (quoting Trigones v. Attorney General, 420 Mass.
859, 864, 652 N.E.2d 893 (Mass. 1995) ("for the purpose of due process analysis, our
standard of review under the cognate provisions of the Massachusetts Declaration of Rights
usually is comparable to that under the Fourteenth Amendment to the United States
Constitution"); Doe v. Attorney General, 426 Mass. 136, 144 n. 8, 686 N.E.2d
1007 (Mass. 1997) (citation omitted) ("we treat the procedural due process
protections of the Massachusetts and United States Constitutions identically"); Aime
v. Commonwealth, 414 Mass. 667, 681 n. 18, 611 N.E.2d 204 (1993) ("We have on
occasion afforded the individual's 'interest inphysical liberty more protection
than required by the United States Supreme Court").

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particular situation demands, a court should weigh three factors: (1) the private
interest that will be affected by the exparte process; (2) the risk of erroneous
deprivation through the exparte process under attack and the probable value of
additional or alternative safeguards; and (3) the interest of the party seeking the exparte
remedy with due regard for any ancillary interest the government may have in providing
the exparte process or foregoing the added burden of providing greater protections.
See Connecticut v. Doehr, 501 U.S. 1, 10-11, 111 S.Ct. 2105, 2112, 115 L.Ed.2d 1
(1991) (applying the threefold analysis set forth in Mathews, 424 U.S. at 334, 96
S.Ct. at 902, to situations similar to the instant case in which a private individual is
seeking a prejudpment remedy). See also Penobscot Air Services, LTD., v.
Federal Aviation Administration, 164 F.3d 713) 723 (1st Cir. 1999).

In weighing the three Mathews/Doehr factors, it is clear that substantial
proceduralprotections are necessary to protect an alleged abuser from the wrongful
deprivation of significant constitutional rights. See Blazel, 698 F. Supp. at 763. A
Chapter 209A, § 4 ex parte temporary restraining order can have a significant
effect on both an alleged abuser's liberty interest in his/her familial relationship with
his/her children. See, e.g., Board of Regents v. Roth, 408 U.S. 5641 572, 92
S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972) (among the liberty interests protected by the
Fourteenth Amendmentincludes the right to establish a home and bring up
children). However, these interests must be weighed against the significant interests of
both the

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petitioner, who has an interest in protecting his/her self, family, and home from
abuse, and the state, which has a compelling interest in preventing domestic abuse --
particularly any abuse that may be the result of an abused individual seeking protection
in the judicial process. See,e.g.., Moore, 442 U.S. at 434-35, 99 S.Ct. at
2383; Blazel, 698 F. Supp. at 763.

While the Mathews/Doehr framework is helpfill in highlighting the competing
interests which should be considered, it provides very little guidance as to the specific
procedural protections which are necessary in any given situation. See Blazel, 698
F. Supp. at 763. Faced with a similar lack of specific guidance under Mathews, the federal
district court in Blazel analyzed the Supreme Court's decisions in creditor
repossession cases and concluded that in the absence of a pre-deprivation hearing due
process requires four minimum procedural safeguards. See id.at763-64. The district
court concluded that due process is satisfied so long as the exparte process
requires: "participation by a judicial officer; a prompt post-deprivation hearing;
verified petitions or affidavits constaining detailed allegations based on personal
knowledge; and risk of immediate and irreparable harm," Blazel, 698 F. Supp.
at 763-64 (citing North Georgia Finishing, Inc. v. DiChem, Inc., 419 U.S. 601, 607,
95 S.Ct. 719, 722, 42 L.Ed.2d 751 (1975); Mitchell v. W.T. Grant, 416 U.S.
600, 605-09, 94 S.Ct. 1895, 1899-1901) 40 L.Ed.2d 406 (1974); Fuentes v. Shevin,
407 U.S. 67, 93) 92 S.Ct. 1983, 2000, 32 L.Ed.2d 556 (1972); Sniadach v. Family
Finance Corp., 395 U.S. 337, 339, 89 S.Ct. 1820, 1821, 23 L.Ed.2d 349 (1969)).

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Where these procedural safeguards are present, the risk of an
erroneous deprivation of an alleged abuser's rights is outweighed by the combinedinterests of the petitioner and the state. The district court's analysis
and reasoning in Blazel is a correct interpretation of the Supreme Court cases on
the requirements of the due process clause8 . As such, this Court adopts the
court's reasoning in Blazel with regard to the procedural safeguards necessary for
a domestic abuse statute, which provides for the exparte issuance of temporary
restraining orders, to pass constitutional muster.

Applying the Blazel analysis to this case, it is clear that Chapter 209A, § 4
provides all four procedural protections necessary under the due process clause of the
Fourteenth Amendment. Only a judge may issue an ex parte temporary restraining
order under Chapter 209A. See id. A prompt post-deprivation hearing must be
given to the alleged abuser within ten business days of the issuance of the exparte order.
See id. The court may enter a temporary restraining only if the petitioner files a
complaint that "demonstrates a substantial likelihood of immediate danger of
abuse." Mass.Gen.L. ch. 209A, § 4. See also Mass.R.Dom.Rel.P., Rule 65 (requiring
the filing of an affidavit or verified complaint before the granting of an exparte temporary
restraining order). The standardized complaint form used for Chapter 209A restraining
orders specifically requires that the petitioner file an affidavitwhich describes
"in detail" the petitioner's allegations. Furthermore, the petitioner

Footnote

8 This Court is not alone in finding the analysis and reasoning in
Blazel to be correct. See Eisenbart v. Wisconsin, 993 F.2d 1549 (Table), 1993 WL
134608 (7th Cir. 1993) (unpublished table opinion) (stating that the circuit court would
rule in the same manner as the district court did in Blazel).

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is required to sign under penalty of perjury as to the truthfullness of the affidavit
and complaint. Therefore, the exparte proceeding of ch. 209A, § 4, provides all
theprocedural protections neccssary to satisfy the
requirements of due process of law.

Second Amendment Claim

The plaintiffs' claim inCount III under the Second
Amendment also must be dismissed for failure to state a claim under Section 1983 because
the Second Amendment applies only to the federal government and not to the states. See
U. S. v. Cruikshank, 92 U. S. 542, 553, 2 Otto. 542, 23 L.Ed. 588 (1875); Thomas v.
Members of City Council of Portland, 730 F.2d 411 42 (1st Cir. 1984) (citing, Presser
v. Ithnois, 116 U.S. 252, 265, 6 S.Ct. 580) 584) 29 L.Ed. 615 (1886) (second amendment
confers right as against activity by the"federal government only")). See
also Mayberry v. Rizzo, No.95-CV-199, 1996 WL 66229) * 1 (D.Me. 1996) (right to bear
arm has never been incorporated into the Fourteenth Amendment's protection of due process)
(citing, Fresno Rifle & Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723,
730 (9th Cir.1992)).

CONCLUSION

The Defendants' Motion to Dismiss is granted as to all counts.
Counts I and III are dismissed for failing to state a claim under 42 U.S.C. § 1983
because the plaintiffs have failed to allege either state action or a cognizable
constitutional deprivation. Count II is dismissed because it constitutes as an action for
injunctive rehef which is barred by the express language of 42 U.S.C. § 1983.